Committee Against Torture, Consideration of reports submitted
by States Parties under article 19 of the Convention, Portugal, U.N. Doc.
CAT/C/44/Add.7 (1999).

COMMITTEE AGAINST TORTURE

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION

Third periodic
reports of States parties due in 1998

Addendum

PORTUGAL*

[2 February 1999]

* The initial
report submitted by the Government of Portugal is contained in document
CAT/C/9/Add.15; for its consideration by the Committee, see documents
CAT/C/SR.166 and 167 and Official Records of the General Assembly,
forty-ninth session, Supplement No. 44 (A/49/44, paras. 106-117).
The second periodic report of Portugal is contained in document CAT/C/25/Add.10;
for its consideration by the Committee see documents CAT/C/SR.305, 306
and 308 and Official Records of the General Assembly, fifty-third session,
Supplement No. 44 (A/53/44, paras. 70-79).

CONTENTS

Paragraphs

Introduction

1 - 5

I. GENERAL LEGAL FRAMEWORK

6 - 26

II. INFORMATION ON
EACH OF THE ARTICLES IN PART I OF THE CONVENTION

27 - 234

Article 1

27 - 32

Article 2

33 - 97

Article 3

98 - 116

Article 4

117 - 118

Article 5

119 - 120

Article 6

121 - 138

Article 7

139 - 141

Article 8

142 - 144

Article 9

145 - 146

Article 10

147 - 158

Article 11

159 - 196

Article 12

197 - 202

Article 13

203 - 219

Article 14

220 - 227

Article 15

228 - 231

Article 16

232 - 234

Introduction

1. Portugal signed
the Convention against Torture and Other Cruel, Inhuman Degrading Treatment
or Punishment on 4 February 1985. The Convention entered into force for
Portugal on 11 March 1989, after its ratification by the Assembly of the
Republic in resolution No. 11/88 of 1 March 1988.

2. The initial
report of Portugal to the Committee against Torture covered the period
between 11 March 1989 and 31 March 1992 and was submitted in conformity
with the provisions of article 19, paragraph 1, of the Convention.

3. The second
periodic report submitted by Portugal covered the period between 31 March
1992 and 31 March 1996.

4. The present
report covers the period between 31 March 1996 and 28 February 1998. It
follows the guidelines adopted by the Committee against Torture at its
85th meeting. The observations and recommendations made by the Committee
on the occasion of the discussion of the second periodic report of Portugal
(see CAT/C/SR.308) have also been taken into account in its preparation.

5. The present
report has the same general framework as the second periodic report, so
as to facilitate understanding and enable comparison of the updated data
presented in the two reports.

I. GENERAL LEGAL FRAMEWORK*

* The 76 legal texts in Portuguese which were provided with the report
may be consulted in the archives of the Office of the United Nations High
Commissioner for Human Rights.

6. A number of legislative changes have occurred in the general domestic
legal framework.

7. Constitutional
Act No. 1/97 of 20 September 1997 brought about the fourth revision of
the Constitution of the Portuguese Republic .

8. The revision
envisages two major alterations which are relevant to the present report.
The first concerns the principles of extradition provided for in article
33 of the Portuguese Constitution, which now reads as follows:

"1. Portuguese
citizens shall not be deported from the national territory.

2. Deportation
of persons who have entered, or are permanently resident in, the national
territory, who have obtained a residence permit, or who have lodged an
application for asylum that has not been refused, shall be determined
by a judicial authority only; the law shall provide for the expeditious
decision of these matters.

3. The extradition
of Portuguese citizens from the national territory shall only be permitted,
on condition of reciprocity based on an international agreement, in cases
of terrorism and international organized crime and provided that the legal
order of the requesting State enshrines safeguards of a fair and just
trial.

4. No one shall
be extradited for political reasons nor for crimes which, under the law
of the requesting State, carry the death penalty or any other penalty
causing irreversible damage to the physical integrity of the person.

5. Extradition
in respect of offences punishable, under the law of the requesting State,
by deprivation of liberty or detention order for life or an indeterminate
term, shall only be permitted on condition of reciprocity based on an
international agreement and provided that the requesting State gives an
assurance that such sentence or detention order will not be imposed or
enforced.

6. Extradition
shall be determined by a judicial authority only.

7. The right
of asylum is guaranteed to aliens and stateless persons who are persecuted,
or under a serious threat of persecution, in consequence of their activities
on behalf of democracy, social or national liberation, peace between peoples,
or the liberty or human rights of individuals.

8. The status
of political refugees shall be established by law."

9. As amended,
article 33, paragraph 4, now expressly prohibits the extradition of persons
for crimes which under the law of the requesting State are liable to a
penalty causing irreversible damage to the physical integrity of the person.

10. The extradition
of Portuguese citizens from the national territory is now envisioned,
on condition of reciprocity based on an international agreement, in cases
of terrorism and international organized crime, provided that the legal
order of the requesting State enshrines safeguards for a fair and just
trial.

11. Extradition
for crimes which, under the law of the requesting State, are punishable
by deprivation of liberty or detention order for life or an indeterminate
term shall only be permitted on condition of reciprocity based on an international
agreement and provided that the requesting State gives an assurance that
such sentence or detention order will not be imposed or enforced.

12. Article 32,
paragraph 6, of the Portuguese Constitution now provides for the possibility
that, in certain cases and with due regard for the right of defence, the
personal appearance of the person charged with or accused of an offence
can be dispensed with in the procedural acts, including the trial, as
long as the respective declarations of identity and residence have been
duly made by the defendant and he is informed of the existence of proceedings
against him.

13. In addition,
the Criminal Code / Bill No. 160/VII amending the Criminal Code has recently
been approved./ which underwent a first revision in 1995, is currently
in the final stages of a second revision.

14. In the areas
relevant to this report, the reforms introduced by the new bill are rather
significant and involve stricter penalties for several crimes against
persons, as well as the reinforcement of the legally protected right of
sexual freedom, in the case of sexual crimes.

15. Regarding
murder, three new aggravating circumstances have been added: crimes committed
against particularly defenceless victims, by a public official exercising
serious abuse of authority or through particularly dangerous means. The
increased criminal liability under these circumstances extends to crimes
against physical integrity, liberty and honour. The use of particularly
dangerous means is common to offences against the physical integrity of
persons.

16. A procedural
modification was introduced in terms of ill-treatment of a spouse, or
other person living with the perpetrator under similar circumstances.
This modification renders punishable with a sentence of from one to five
years' imprisonment physical or psychological abuse of a spouse or any
other person who co-habitates with the offender under conditions similar
to those of a spouse.

17. Violation
of the rules governing safety at work is also rendered criminal.

18. Addressing
the issue of humanizing sentences, the revision gives predominance to
the application of alternative sentences to short-term imprisonment. As
such, and based on the same principles, the Bill proposes amendments to
the articles regarding the maximum limits for relatively indeterminate
sentences, now set at a total maximum of 25 years, as opposed to the previous
system which did not determine any such maximum limit in these cases.

19. The proposed
Bill on the Revision of the Code of Criminal Procedure, / Bill No. 157/VII
amending the Penal Procedure Code was approved in June of 1998./ approved
by the Council of Ministers on 4 December 1997, confers unity and rationality
upon the process, by clarifying the roles of the judicial authorities
and police bodies and by reinforcing the effectiveness of the system and
the protection of fundamental rights. The prospective Code of Penal Procedure
attempts to conciliate efficiently the conflicting objectives of security
and the protection of fundamental rights.

20. The new system
has two major features, namely an increase in the number of cases in which,
as referred to previously, the accused may be tried in absentia
provided that he has been duly notified of the proceedings initiated against
him, and procedural differentiation between minor or medium offences on
the one hand and grave crimes on the other, through mechanisms of procedural
simplification and the establishment of a new abbreviated process. The
systems of summary proceedings, proceedings and application for civil
indemnity have all been altered. The possibility has been introduced for
the court to award, with the effect of criminal conviction, damages for
losses suffered, when special considerations so require for the protection
of the victim. In terms of in camera proceedings, certain changes
have been introduced which render the system more flexible. Changes have
also been made in the area of resources, with the aim of evaluating the
available means and using them more effectively.

21. It is important
to recall Law No. 20/96 of 6 July, which allows immigrant community, anti-racist
and human rights organizations to participate in criminal proceedings
without a request from the victim when the offence on trial involves racist,
xenophobic or discriminatory conduct, unless the victim is expressly opposed
to this participation.

22. Of particular
note is the reform of the prison system under which several legislative
measures have been adopted which are likely to contribute to the improvement
of the conditions of detention in prison establishments. The legislative
initiatives referred to above are part of the Programme of Action for
the Prison System, approved through Council of Ministers resolution No.
62/96 of 29 April. The principal features of this programme of action
will be discussed below in greater detail, under article 11.

23. In terms
of international law, several new multilateral international instruments
were ratified in areas which are relevant to the prevention and punishment
of torture, namely:

Europol Convention,
creating a European Police Force designed to combat the more violent forms
of crime, ratified by the Assembly of the Republic in resolution No. 64/97,
of 3 July, published in the Official Journal No. 217, series I-A, of 19
September;

Convention on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons
which may be deemed to be Excessively Injurious or to have Indiscriminate
Effects, ratified by Presidential Decree No. 1/97, published in the Official
Journal, series I of 13 January;

Convention on
the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on their Destruction, open for signature on 13 January
1993, approved for ratification by the Assembly of the Republic in resolution
No. 25-A/96, published in the Official Journal No. 169 series I-A, 23
July supplement;

Protocol No.
9 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, of 6 November 1990, published in the Official Journal No. 55,
series I-A, 7 March 1994, ratified by Portugal on 12 October 1995, which
came into effect on 1 February 1998, as per Notice No. 6/96, published
in the Official Journal, series I of 2 January;

Protocol No.
11 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, Restructuring the Control Machinery Established thereby and
respective annex, signed in Strasbourg on 11 May 1994, approved for ratification
by the Assembly of the Republic in resolution No. 21/97, published in
the Official Journal No. 102, series I-A of 3 May 1997;

Protocol No.
1 to the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment, open for signature in Strasbourg
on 4 November 1993, approved for ratification by the Assembly of the Republic
in Resolution No. 24/97, published in the Official Journal No. 103, series
I-A, of 5 May 1997;

Protocol No.
2 to the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment open for signature in Strasbourg
on 4 November 1993, approved for ratification by the Assembly of the Republic
in resolution No. 19/97, published in the Official Journal No. 100, series
I-A , of 30 April 1997.

24. In addition,
the following instruments on mutual international judicial assistance
in criminal matters are already in force for Portugal:

European Convention
on Extradition, as of 25 April 1990;

Convention for
the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, as of 29 December 1992;

European Convention
on the Transfer of Sentenced Persons, as of 1 October 1993;

European Convention
on Mutual Assistance in Criminal Matters, as of 26 December 1994;

European Convention
on the Supervision of Conditionally Sentenced or Conditionally Released
Offenders, as of 17 February 1995;

Additional Protocol
to the European Convention on Mutual Assistance in Criminal Matters, as
of 27 April 1995;

Convention of
the Member States of the European Communities on the implementation of
the principle non bis in idem, as of 1 January 1996. / Although
it did not have the necessary number of ratifications to enter into force,
it is applicable in the bilateral relations of member States which have
issued a declaration to this effect at the moment of ratification./

25. The following
Conventions are still not in force, although they have already been ratified
by Portugal:

Agreement between
the Member States of the European Communities on the Simplification and
Modernization of Methods of Transmitting Extradition Requests, signed
in Brussels on 10 March 1995, ratified by Presidential Decree No. 41/97,
of 22 May, published in the Official Journal No. 138, series I-A, 18 June;

European Convention
on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime,
ratified by Presidential Decree No. 73/97, of 27 November, published in
Official Journal No. 287, Series I-A of 13 December.

26. Portugal's
commitment in the combat against torture is also reaffirmed at the more
restricted regional level, as in the Council of Europe. As such, Portugal
has been a party to the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment since 29 March 1990.
It is important to note that the Committee for the Prevention of Torture,
instituted under this convention of the Council of Europe, has already
undertaken two regular visits to Portugal (January 1992 and May 1995),
following which the Government authorized the publication of the respective
reports together with its own observations. There was an additional extraordinary
visit in 1995, for the purpose of analysing specific aspects of previous
recommendations of the Committee regarding one particular prison establishment.

II. INFORMATION ON EACH OF THE ARTICLES IN PART I OF THE CONVENTION

Article
1

Definition
of torture

27. The legal
definition of torture is laid down in article 243, paragraph 3, of the
Criminal Code, according to which torture, or cruel, degrading or inhuman
treatment are defined as "acts inflicting intense physical or psychological
suffering or severe physical or psychological fatigue or involving the
use of chemical substances, drugs or other natural or artificial means,
intended to impair the victim's ability to make decisions or freely express
his will".

28. Article 244
of the Code stipulates:

"1. Under the
terms and conditions mentioned in the preceding article, / Article 243
of the Criminal Code:

"1. Whosoever,
charged with the function of prevention, follow-up, investigation or knowledge
of criminal infractions, misdemeanors or disciplinary infractions, the
application of related sanctions, or the protection, guard or supervision
of a detainee or prisoner, tortures or subjects such persons to torture,
cruel, inhuman or degrading treatment for the purposes of:

(a) Obtaining
from this or any other person, a confession, statement, declaration or
information;

(b) Punishment
for an act committed, or allegedly committed by that or any other person;
or

(c) Intimidation
of that or any other person

shall be punished
with a prison sentence of from one to five years, if a heavier sentence
is not applicable by virtue of another legal provision.

2. Any person
who on his own initiative or following orders from a superior, uses the
function referred to in the previous paragraph, to carry out any of the
acts described therein, shall be liable to the same sentence.

3. Torture,
or cruel, degrading or inhuman treatment are defined as acts inflicting
intense physical or psychological suffering or severe physical or psychological
fatigue or involving the use of chemical substances, drugs or other natural
or artificial means, intended to impair the victim's ability to make decisions
or freely express his will.

4. The provisions
of the preceding paragraph do not include the sufferings inherent in the
execution of the sanctions foreseen under paragraph 1 or engendered by
it, or any legal detention or restraining measures."/ whosoever,

2. When the
acts described in this or the previous article lead to the victim's suicide
or death, the person responsible shall be liable to a penalty of from
8 to 16 years' imprisonment."

29. The use of
torture is also an aggravating circumstance in other crimes referred to
in the Criminal Code. As such, the sentences applicable to the crimes
of murder (art. 132, para. 2) and serious physical offences (art. 144),
for example, are heavier in cases where torture is involved.

30. In addition,
the above-mentioned offences are public crimes and therefore liable to
the initiation of ex officio proceedings by the Public Prosecutor,
in accordance with the legal principle in effect in Portugal which determines
that this procedure is mandatory.

31. These crimes
are imputable to the author, as well as to co-principals and to members
of associations or criminal organizations, the object of which is the
practice of these criminal activities. Attempt, in these crimes is always
punishable. In its subjective structure, these crimes, envisage both law
enforcement officials and private citizens.

32. In accordance
with Portuguese law, international law is considered to be infraconstitutional
but supralegal. As such, the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment is considered as having been
incorporated into Portuguese law upon its entry into force for Portugal.
Pursuant to article 8, paragraph 2, of the Portuguese Constitution, "The
rules provided for in international conventions that have been duly ratified
or approved, shall apply in national law, following their official publication,
so long as they remain internationally binding with respect to the Portuguese
State." As such and in terms of the full incorporation of the present
Convention in Portuguese domestic law, the latter was previously approved
by the Assembly of the Republic and later ratified by the President of
the Republic.

Article
2

Legislative,
administrative, judicial and other measures

33. For information
regarding the legislative, administrative and judicial measures adopted
in Portugal to combat torture, the reader is referred to paragraphs 50
to 116 of the initial report (CAT/C/9/Add.15) and to paragraphs 19 to
24 of the second periodic report (CAT/C/25/Add.10).

34. Bearing in
mind this general framework, a few additional measures adopted by Portugal
in the following areas are discussed below:

(a) Organization
of the permanent courts and other measures of judicial organization;

(b) Police measures;

(c) Protection
of the victims of violent crimes;

(d) Child victims
of violence;

(e) Physician's
Code of Ethics;

(f) Reorganization
of the medical legal system;

(g) The medical
profession and Legis Artis;

(h) Removal
of organs from dead or living persons;

(i) National
Ethics Council and local ethics commissions;

(j) Mental Health
Law.

35. Article 18,
paragraph 1, of the Portuguese Constitution stipulates that the Constitutional
provisions relating to rights, freedoms and safeguards shall be directly
applicable to and binding on public and private bodies.

36. The Constitution
establishes the right to life and physical integrity of the person, as
a fundamental and inviolable right and, as such, article 19, paragraph
6, of the Constitution stipulates that the declaration of a state of siege
or a state of emergency shall under no circumstances affect the right
to life and physical integrity.

Organization
of the permanent courts and other measures of judicial organization

37. Law No. 44/96,
of 3 September, establishes a rota system of 50 courts, designed to address
issues of an urgent nature during weekends and national holidays. An example
of these urgent issues is the presentation of every detainee before an
examining magistrate within a maximum period of 48 hours following detention,
in accordance with article 28, paragraph 1, of the Portuguese Constitution
and article 141 of the Portuguese Criminal Code. The detainee must be
brought before the examining magistrate even if the arrest does not take
place in flagrante delicto, but as a consequence of an arrest warrant
previously issued by a judge. This understanding was expressly articulated
in the revision to the Code of Criminal Procedure (art. 254, para. 2).

38. The revisions
to the Public Prosecutor Act, (Bill No. 113/VII / Bill No. 113/VII was
approved in July of 1998./ of the Assembly of the Republic) and the Organic
Law of the Judicial Courts (Bill No. 182/VII, of the Assembly of the Republic)
are at present in the final stages of conclusion. These changes fall within
the general framework of reinforcement of the institutions devoted to
the administration of criminal justice.

39. Law No. 1/97,
of 16 January, establishes a technical advisory nucleus within the Office
of the Attorney General aimed at providing technical consultancy services
to the Department of Justice in the areas of economics, finance, banking,
accounting and the movables market.

40. The revision
of the Organization Act governing the Centre for Judicial Studies (Bill
No. 139/VII / This Bill was superseded by Law No. 16/98, of 8 April. /
of the Assembly of the Republic) is also in its final stages. This law
is aimed at improving upon the experiences obtained during the last 15
years of the Centre's activity.

41. Law No. 289/97,
of 22 October, establishes the Criminal Affairs Council, the supreme consultative
body of the Ministry of Justice, the National Institute of Criminology
thereby becoming defunct.

2. No one shall
be deprived of his or her liberty, in whole or in part, unless as the
consequence of a sentence of imprisonment imposed by a court convicting
him or her of an offence punishable by law, or as the consequence of a
security measure judicially ordered.

3. This guarantee
does not apply to the following cases where a person is deprived of his
or her liberty, for a period and under conditions laid down by law:

(a) Detention
in flagrante delicto;

(b) Detention
or remand in custody where there is strong evidence that the person has
committed a serious crime punishable by imprisonment for more than three
years;

(c) Arrest,
detention or other coercive measure subject to judicial control of a person
who has unlawfully entered or remained in the national territory or against
whom extradition or deportation proceedings have been instituted;

(d) Imprisonment
for reasons of discipline of military personnel, to whom a right to appeal
to the competent court is guaranteed;

(e) Detention
of a minor in an appropriate institution for the purposes of protection,
support or education, on the order of a competent court of law;

(f) Detention
under a court order for non-compliance with a court order or to ensure
appearance before the competent judicial authority;

(g) Detention
of suspects, for identification purposes, in such cases and periods of
time as are strictly necessary;

(h) Committal
of a person suffering from a mental disorder to an appropriate therapeutic
institution ordered, or confirmed, by a competent judicial authority.

4. Everyone
who is deprived of liberty shall be informed, promptly and in a manner
that he or she understands, of the reasons for the arrest or detention,
and of his or her rights.

5. Any deprivation
of liberty in violation of the provisions of this Constitution or the
law shall place the State under the duty to compensate the person aggrieved
as laid down by the law."/ of the Constitution of the Portuguese Republic
stipulate that no one shall be deprived of his or her liberty, in whole
or in part, except as a result of a criminal sentence imposed by a court
as a conviction for an offence punishable by imprisonment, or as the consequence
of a judicially ordered security measure. Paragraph 3 stipulates the situations
under which a citizen may be deprived of those rights and paragraph 4
the minimum guarantees surrounding such deprivation.

43. These principles
are reflected in the Organization Acts of the main police forces established
by Portuguese legislation: the Judicial Police, the Public Security Police
and the National Republican Guard.

44. The Public
Security Police and the National Republican Guard come under the Ministry
of the Interior, whilst the Judicial Police come under the Ministry of
Justice.

45. The Public
Security Police Organization Act, was adopted by Decree-Law No. 321/94,
of 29 December. This Act includes a list of specific cases in which coercive
measures may be used. For further information we refer the reader to paragraph
35 of the second periodic report (CAT/C/25/Add.10). Decree-Law No. 2-A/96,
of 13 January, has altered the rules governing the appointment of the
Commander General of this police force, so as to bring them into closer
alignment with the European model governing the appointment of the supreme
commanders of similar police forces. As such, "The Commander General of
the Public Security Police is nominated by the Minister of the Interior
and must be a General in the army, a police officer of rank not lower
than that of Chief Superintendent, a member of the Public Prosecutor's
Office, or other person of recognized high moral standing."

46. Under conditions
similar to those of the Public Security Police, the Organization Act of
the National Republican Guard, adopted by Decree-Law No. 265/93, of 31
July, defines in article 30, the situations in which coercive measures
may be utilized. For further information we refer the reader to paragraph
37 of the second periodic report (CAT/C/25/Add.10).

47. The Judicial
Police is a criminal police body organized hierarchically under the Ministry
of Justice and overseen by the Public Prosecutor's Office, which supervises
its procedural activity. The functions of this police body are to prevent
and investigate crimes and to work in cooperation with the judicial authorities.

48. Decree-Law
No. 295-A/90, of 21 September, establishing the organizational regime
governing the Judicial Police, stipulates, in paragraph 1 (b) of article
91, the special duty incumbent on the police forces to refrain from inflicting
torture, or inhuman, cruel or degrading punishment or treatment, as well
as to refuse to execute, or if necessary to disregard any orders or instructions
to apply such treatment, as well as to refrain from the use of force beyond
that which is strictly necessary for the performance of a task that is
required or authorized by law.

49. The Inspectorate-General
(Inspecção-Geral da Administração Interna), is a high-level inspection
and prosecution service within the Ministry of the Interior, established
by Decree-Law No. 227/95, of 11 September, the main function of which
is to monitor and supervise the legality of the activities of the police
forces. The Inspectorate-General, headed by a Deputy Attorney-General,
is a service whose primary role is to monitor legality, protect citizens'
rights and achieve more effective and prompt administration of disciplinary
measures.

50. As reported
in the media, the conclusions of the 1997 report issued by the Inspectorate-General
emphasize an improvement in respect by police officers for citizens' rights,
as reaffirmed in a public statement by the Minister of the Interior, who
highlighted the fact that the Inspectorate-General contributes "to a better
protection of the citizens and defence of their rights, as well as the
dignification of the security forces and improvement of their work conditions".

51. The report
further highlights a reduction in cases of alleged physical abuse by members
of the police forces, a situation which gave rise to 34 complaints in
the first 10 months of 1996 and 22 in 1997, a downward trend which also
applies to 1998.

52. On the other
hand, in 1997 over 100 detention areas in police stations and quarters
were closed down, in addition to 18 Republican National Guard quarters
and 3 Public Security Police stations, as a result of inspections carried
out by the Directorate-General who classified them as inadequate detention
facilities. A noteworthy example is that of the prison cells of the Lisbon
Governo Civil / Services headed by a Governador Civil, nominated
by the Government as its representative at the district level./ the conditions
of which were condemned by the Committee for the Prevention of Torture,
following a visit there, as well as by the Inspector-General. As a result,
the cells were renovated, namely through the opening of new windows and
the creation of special cells for inmates with children, decorated with
children's motifs.

53. For further
information on these issues, the reader is referred to paragraphs 27 to
44 of the second periodic report (CAT/C/25/Add.10).

Protection
of victims of violent crime

54. As already
stated in paragraphs 45 to 50 of the second periodic report (CAT/C/25/Add.10),
Decree-Law No. 423/91, of 30 October, amended by Law No. 10/96, of 23
March, establishes a legal regime for the protection of victims of violent
crime. Articles 129 and 130 of the Criminal Code stipulate the civil liability
deriving from a crime, and the compensation of the injured party is provided
for in special legislation.

55. Under Decree-Law
No. 423/91 of 30 October, Regulatory Decree No. 4/93 of 22 February and
Law No. 10/96 of 23 March, the Minister of Justice is responsible for
the decision to award compensation to the victims of violent crimes, upon
the advice, as to the merits of the award and the amount to be awarded,
of the Fact Finding Commission for the Award of Compensation to Victims
of Violent Crimes, a body set up to consider and analyse these specific
requests.

56. The Commission
is composed of a judge appointed by the Supreme Council of the Judiciary,
a lawyer appointed by the Bar Association and a senior official of the
Ministry of Justice, appointed by the Minister.

57. The following
data provided by the Fact Finding Commission for the Award of Compensation
to Victims of Violent Crime reflect the activities of the Commission relative
to 1996. / Source: Justice files, September 1997, Bureau of Studies
and Planning of the Ministry of Justice./

1996 Statistics

Proceedings

Proceedings
carried over from 1995 : 52

Proceedings
filed : 59

Proceedings
with final opinion by the Commission : 58

Finalized proceedings
/ By Order of the Secretary of State for Justice./ : 42

Proceedings
carried over to 1997 : 69

Proceedings
filed

In 1993 : 62

In 1994 : 52

In 1995 : 42

In 1996 : 59

In 1997 / Until
30 June./ : 88

58. The Commission's
1996 annual report highlights the need to review certain issues, so as
to enable the Commission to pursue its future activities adequately: lack
of knowledge by the interested parties of the workings of the Commission;
the need to amend certain aspects of Decree Law No. 423/91, of 30 October.

59. Relative
to the second issue, the Commission took the initiative of drafting a
proposal for legislative change, which accompanied the above-mentioned
report. The Commission also expressed its availability to discuss the
proposed changes, as well as any others relevant related to this issue,
offering its experience and knowledge of practical cases, as a contribution
to the improvement of the law.

60. The Commission's
annual report further states that, in accordance with the 1994 justice
statistics, there were 1,723 crimes susceptible to create victims who
qualify as petitioners for State compensation. This statistic involves
only the crimes of murder, manslaughter, abduction and sequester. Even
considering that 50 per cent of the victims of these crimes did not fulfil
the prerequisites established by Decree-Law No. 423/91, 800 requests for
compensation should have been filed with the Commission, instead of the
213 filed since 1993.

61. Law No. 61/91
of 13 August, establishes the special protection awarded to women victims
of violence, namely through the setting up of a prevention and support
network, an SOS office aimed at providing a telephone helpline and the
creation of departments within the criminal police bodies staffed by female
agents.

62. It is important
to stress that the European Convention on the Compensation of Victims
of Violent Crimes was signed by Portugal on 6 March 1997 and entered into
force on 1 February 1998.

63. Among the
private associations, the Portuguese Association for the Support of Victims
(APAV), is a private social welfare agency, aimed at providing moral,
social, legal, psychological and economic support to victims of general
criminal offences.

64. A new section
of APAV was recently established in Faro, adding to the 10 already existent
throughout the country, namely in Lisbon (2), Cascais, Loures, Setúbal,
Porto, Vila do Conde, Braga, Vila Real and Coimbra. The Faro section has
already attended to over 50 cases in the first three months of activity.
The section is functioning in quarters ceded by the Judicial Police and
is composed of a multidisciplinary team of 20 professionals ranging from
psychologists and lawyers, to nurses, social workers and teachers, all
working on a voluntary basis. Eighty-five per cent of the victims who
seek the support of this office are women.

65. Measures
aimed at the protection of victims have also been adopted within a framework
of safeguarding equality of opportunities. In this regard, Portugal has
undertaken two initiatives recently:

(a) The establishment
of the Office of the High Commissioner for Matters relating to the Promotion
of Equality and the Family, by Decree-Law No. 3-B/96 of 26 January 1996.
An example of the role of the High Commissioner is the recent establishment
of a safe house for battered women, in a joint venture with the Municipality
of Alverca, following a proposal made by that office to the country's
12 women mayors regarding the joint setting up of this kind of unit;

(b) The adoption
on 24 March 1997, of a Global Plan for Equality of Opportunities. This
plan envisages not only the Government's objectives in terms of the policies
of equality of opportunities between men and women, but also the commitments
espoused by the Platform for Action of the United Nations Fourth World
Conference on Women, stressing the importance of those policies in terms
of sustained economic development, social development and the promotion
of democracy. The Global Plan espouses six objectives and attributes the
global coordination of the project to the High Commissioner for Matters
relating to the Promotion of Equality and the Family. A year after its
publication in the Official Journal, the Global Plan will be subject to
evaluation, relative to the application of the measures contained therein.

66. In the area
of prevention, the following measures have been adopted:

Public awareness
campaigns regarding the role of women in society;

The elaboration
and distribution of a guide containing practical information on the rights
of women victims of violence.

67. The following
protective measures are worthy of mention:

Establishment
of shelters for women victims of violence;

Establishment
of an emergency telephone hotline;

Establishment
in the relevant criminal police bodies, of reception areas for women victims
of violent crimes;

Establishment
of procedures designed to overcome the gap between the filing of a complaint
by a victim of family violence and the issue of a restraining order against
the person living with the victim if this is deemed convenient by the
court;

Promotion and
reinforcement of measures aimed at the compensation of victims of family
violence;

Introduction
in courses designed for police officials of matters relating to the psychological
and social effects of family violence on the victims and on the family
structure;

Promotion of
measures aimed at the suppression of the exploitation of the prostitution
of others and traffic in women, through stricter cooperation between the
Government and the local authorities;

Establishment
of family mediation centres.

68. Besides these,
there are specific measures aimed at the protection of women victims of
violence, among which are: the legitimacy awarded to women's associations
to exercise the right of popular action in defence of the rights of women;
the reinforcement of the legal protection of women victims of violence,
sexual abuse and ill-treatment by a spouse or person living with the victim
under conditions analogous to those of a spouse; and the obligation of
the State to compensate the victim, when compensation cannot be paid by
the perpetrator or by any other means.

Child victims
of violence

69. Relative
to the issue of child victims of violence, we refer the reader to paragraphs
52 to 65 and 130 to 145 of the second periodic report (CAT/C/25/Add.10).

70. The draft
revision of the Criminal Code introduces a change to article 5, paragraph
1 (b), so as to allow the application of Portuguese criminal law to crimes
of child sexual abuse, (arts. 172-173) exploitation of the prostitution
of children and the traffic of minors (art. 176), committed outside the
national territory, independently of the nationality of the victim and
of the fact that the act is punishable by the legislation of the country
where the crime was committed.

71. In terms
of child sexual abuse (art. 172), in addition to the already existing
laws against the use of children under the age of 14 in pornographic photography,
film or recording, the exhibition and trade (namely, the sale) of such
materials has also been rendered illegal. The combat against paedophilia
is thus reinforced in accordance with the Common Plan of Action adopted
in this realm by the European Union.

72. So as to
reinforce the protection of child and adolescent victims of sexual crimes
and in accordance with the guidelines advanced in the 1996 Stockholm World
Congress against the Commercial Exploitation of Children, the sexual exploitation
of children under the age of 16 is penalized, independently of the method
used, or the situation of abandonment or need of the victim (art. 176,
para. 2).

73. The combat
against the exploitation of the prostitution of children is also intensified
through the penalization of the laundering of profits derived therefrom,
in accordance with the amendments to article 2 of Decree-Law No. 325/95
of 24 December, thus espousing recommendation R(91) 11, adopted by the
Committee of Ministers of the Council of Europe on 9 September 1991.

74. In terms
of the sexual abuse of dependent adolescents, the revision provides for
the punishment of an offender for crimes committed against minors aged
between 14 and 18 years who have been entrusted to the perpetrator for
the purposes of education or care.

75. Although
as a rule these are semi-public crimes, they may nevertheless be prosecuted
by the Public Prosecutor's Office, independently of the filing of a complaint,
whenever special reasons associated with the public interest so demand
and the victim is under 12 years of age (art. 178, para. 2). The draft
revision introduces an express reference to the best interests of the
victim, which are the only interests to be taken into account. The accessory
penalty of restriction of parental authority, custody or guardianship,
is increased from a maximum period of 5 years to 10 years.

76. In 1996,
1997 and 1998, commissions for the protection of minors were established
in the districts of Lourinhã, Fafe, Felgueiras, Entroncamento, Torres
Novas, Ponte de Lima, Abrantes, Paredes de Coura, Montijo, Barreiro, Amadora,
Cartaxo, Fundão, Soure, Porto de Mós, Figueiró dos Vinhos, Marinha Grande,
Ourém, Guarda, Mogadouro, Baião, Albufeira, Lagos and Olhão, and the town
councils of Lagoa in the Azores, Sertã, Amares, Mortágua and Carregal
do Sal.

77. The Commissions
for the Protection of Minors are official non-judicial institutions with
functional autonomy, invested with a jurisdiction traditionally exercised
by the court, in a process designed to endow the community with greater
responsibility.

78. The commissions
are involved in the detection, prevention and activity based on the respect
for the safeguard of the intimacy of private and family life, directed
at minors under 18 years of age who are victims of abandonment, ill-treatment
or other situations which may pose a serious danger to their safety, health,
moral upbringing or education and minors under the age of 12 who have
committed acts which qualify as crimes or misdemeanours or who are in
situations of begging, vagrancy, alcohol abuse, drug abuse or prostitution.

79. In December
1996, the National Commission on the Rights of the Child was created with
the objective of ensuring a more accurate evaluation and follow-up of
the implementation of the Convention on the Rights of the Child. The Commission,
which is dependent on the High Commissioner for Equality and the Family,
has recently completed the second periodic report on the implementation
of the Convention on the Rights of the Child, which was presented publicly
on the International Day of the Child. After the first year of activity,
during which the main preoccupation of the Commission was the drafting
of the national report, the Commission will direct its activities towards
more practical actions regarding the dissemination of its work and the
principles espoused by the Convention. The Commission has already undertaken
public activities in several parts of the country aimed at informing both
children and adults about the Convention.

80. The Child
Custody Law, the main provisions of which date back to 1978, is at present
being revised. The draft proposal for a child custody law will distinguish
between minors victims of abuse and ill-treatment (protective interventional
custody) and minors perpetrators of criminal violations (educational interventional
custody).

The Physicians'
Code of Ethics

81. The Physicians'
Code of Ethics was drafted in 1982 by physicians, through the Medical
Association, which is a State-approved organization.

82. Article 30
of the Physicians' Code establishes their right of conscientious objection,
whereby a physician is entitled to refuse to perform any professional
act which obliges him to act in conflict with his moral, religious or
humanitarian beliefs.

83. Article 44
of the Physicians' Code provides that any physician who has attended to
a child, an elderly or handicapped person and observes that such a person
has been abused or subjected to ill-treatment or other acts of cruelty
or violence, shall take the appropriate measures for their protection
and, in particular, notify the police or competent social authorities.

84. It seems
important to expand upon the Physicians' Code of Ethics and to clarify
that, in legal terms, the Code comprises a set of norms adopted by this
professional group and recognized by the State.

85. These norms
constitute the basis of an exclusively disciplinary responsibility on
the part of the doctors who infringe them, a responsibility which is established
by the relevant body of the medical profession, namely the National Council
of Ethics of the Medical Association.

86. The physicians'
disciplinary rules are endorsed by Decree-Law No. 217/94, of 20 August.
It is important to note that the physician's disciplinary responsibility
coexists with all other forms of responsibility provided for by the law,
namely criminal law. For additional information, the reader is referred
to paragraphs 76 and 77 of the second periodic report (CAT/C/25/Add.10).

87. Physicians
are also liable to criminal responsibility, through the competent judicial
bodies, based on provisions of the Criminal Code. In accordance with article
150 of the Criminal Code:

"Operations
and medical treatment which, based on medical knowledge and experience
are deemed appropriate and are performed according to the legis artis
by a physician or by another legally authorized person, with the intention
of preventing, diagnosing, healing or undermining illness, suffering,
physical injury or fatigue or mental disturbance, are not considered offences
against the physical integrity of the person."

88. The physician
who upon treatment of a patient observes that the latter has been the
victim of aggression is required to alert the competent authorities and
to take the necessary general measures. This does not preclude the victim
from opposing the physician's duty to undertake such measures, a situation
which the latter will have to ponder based on the specific circumstances
of the case, the nature of the injuries, the means used by the aggressor
and the consequences of the aggression, in accordance with the general
rules regarding conflict of duties.

Reorganization
of the medical legal system

89. Decree-Law
No. 11/98, of 24 January, reorganized the medical legal system, re-evaluating
the system based on acquired experience and introducing structural changes
and improvements so as to provide the system with the greater functionality
and flexibility.

The medical
profession and legis artis

90. The draft
revision of the Criminal Code foresees as an autonomous crime the delinquent
violation of the medical legis artis, giving rise to a danger,
equally imputable to malice under the general terms of article 13, to
the life, physical integrity or health of the patient, a solution which
was consecrated in substance in the original version of the 1982 Criminal
Code (art. 150, para. 2).

Removal of
organs or tissues from dead or living persons

91. The removal
or donation of organs or tissues from dead or living persons is regulated
by Law No. 12/93, of 22 April 1993. We refer the reader to paragraphs
79 to 90 of the second periodic report (CAT/C/25/Add.10) and further remind
the reader that article 10 of the statute "Considers as potential post
mortem donors all national citizens or stateless persons or aliens residing
in Portugal who have not expressly informed the Ministry of Health that
they do not wish to be donors." As worded, the law does not apply to tourists
or temporary visitors to the country.

92. On the occasion
of the adoption of this legislation, an intense public debate was promoted
and undertaken by the media. This debate sought to help explain to the
general public the policy adopted and its implications. It was revealed
that they were duly understood by certain groups, namely those related
to religious movements.

93. It is important
to stress that the physician who verifies and certifies the death of a
donor is barred from having any direct or indirect involvement in the
utilization of the organ in question.

National Council
of Ethics and local ethics commissions

94. The National
Council of Ethics for the Life Sciences was created under Law No. 14/90
of 9 June. In accordance with article 3 of the statute:

"1. The Council
is composed of the President, who is appointed by the Prime Minister,
and by the following members:

(a) Seven dignitaries
of recognized merit in the area of the social sciences who have demonstrated
special interest in ethics issues;

(b) Seven dignitaries
of recognized merit in the areas of medicine or biology with implications
of an ethical nature;

(c) Six dignitaries
of recognized technical quality and moral integrity, bearing in mind the
prevailing ethical and religious currents.

2. The dignitaries
referred to in line (a), paragraph 1 are nominated by the following entities:

(a) Minister
of Planning and Territorial Administration;

(b) Minister
of Justice;

(c) Minister
of Education;

(d) Deputy Prime
Minister and Minister of Youth Affairs;

(e) Board of
Deans of Portuguese Universities;

(f) Bar Association;

(g) `Commission
of Women's Affairs.

3. The dignitaries
referred to in line (b), paragraph 1 are nominated by the following:

(a) Minister
of Health;

(b) Board of
Deans of Portuguese Universities;

(c) Academia
das Ciências de Lisboa;

(d) Medical
Association;

(e) National
Institute of Scientific Investigation;

(f) National
Association of Scientific and Technological Investigation;

(g) Supreme
Council of Medical Jurisprudence.

4. The dignitaries
referred to in line (c), paragraph 1 are nominated according to the proportionality
system by the Assembly of the Republic."

95. It is important
to note that there are local ethics commissions in roughly 90 per cent
of hospitals and in some medical schools.

Mental Health
Law

96. The Mental
Health Law is currently under revision (Assembly of the Republic Bill
No. 121/VIII / This Bill led to the adoption of Law No. 36/98, of 24 July./),
which establishes the general policy principles in the area of mental
health and regulates the mandatory confinement of persons with psychic
anomalies, namely persons suffering from mental illness.

97. This statute
establishes the principle of the judiciousness of compulsory confinement,
which may only be ordered when it is the only form of guaranteeing treatment
of a patient in cases where confinement is based on the level of danger
and injury which may be caused to the person in question and should, as
often as possible, be substituted by outpatient treatment.

Article
3

98. Article 33
of the Portuguese Constitution, as drawn up in Law No. 1/97, of 18 July,
contains the following general provisions on extradition, expulsion and
the right of asylum:

"1. Portuguese
citizens shall not be extradited or deported from the national territory.

2. Deportation
of persons who have entered, or are permanently resident in, the national
territory, who have obtained a residence permit, or who have lodged an
application for asylum that has not been refused, shall be determined
by a judicial authority only; the law shall provide for the expeditious
decision of these matters.

3. The extradition
of Portuguese citizens from the national territory shall only be permitted,
on condition of reciprocity based on an international agreement, in cases
of terrorism and international organized crime and provided that the legal
order of the requesting State enshrines safeguards of a fair and just
trial.

4. No one shall
be extradited for political reasons nor for crimes which, under the law
of the requesting State carry the death penalty or any other penalty causing
irreversible damage to the physical integrity of the person.

5. Extradition
in respect of offences punishable, under the law of the requesting State,
by deprivation of liberty or detention order for life or an indeterminate
term, shall only be permitted on condition of reciprocity based on an
international agreement and provided that the requesting State gives an
assurance that such sentence or detention order will not be imposed or
enforced.

6. Extradition
shall be determined by a judicial authority only.

7. The right
of asylum is guaranteed to aliens and stateless persons who are persecuted,
or under a serious threat of persecution, in consequence of their activities
on behalf of democracy, social or national liberation, peace between peoples
or the liberty or human rights of individuals.

8. The status
of political refugees shall be established by law."

99. In accordance
with article 16 of the Portuguese Constitution, the provisions of the
Constitution and of laws relating to fundamental rights shall be construed
and interpreted in harmony with the Universal Declaration of Human Rights.

100. As such,
the principle contained in article 33 of the Portuguese Constitution regarding
extradition and deportation should be interpreted and applied by the courts
in harmony with the principles espoused by the Universal Declaration.

101. The European
Convention on Human Rights is applicable within the Portuguese legal order,
although it is noteworthy that this Convention does not guarantee the
right of aliens not to be deported or extradited from the territory of
one of the contracting States. However, the case law of the organs of
the European Convention on Human Rights has provided certain restrictions
on the power of States to deport aliens, in cases where there may be grounds
for believing that such deportation may infringe upon the rights guaranteed
under article 3 of the Convention (prohibition of torture, inhuman or
degrading treatment or punishment). This interpretation is valid for Portugal,
as a State party to the above-mentioned Convention which falls within
the jurisdiction of Strasbourg, thus espousing a principle of the Portuguese
Constitution.

102. Apart from
this, Portuguese ordinary law espouses the above-mentioned constitutional
principle in article 72, paragraph 1 of Decree-Law No. 59/93, of 3 March,
which states that "Extradition may not take place to any country where
aliens may suffer persecution for reasons which, in accordance with the
law, justify granting the right to asylum".

Extradition

103. The legal
regime governing extradition is set out in Decree-Law No. 43/91, of 22
January 1991, which establishes the framework for international legal
cooperation in criminal matters. This law is currently under revision
so as to render it adaptable to the new constitutional regime in the area
of extradition resulting, as mentioned in paragraphs 8 to 11 of the present
report, from the fourth constitutional revision.

104. In accordance
with the constitutional text, extradition is refused, among other reasons,
for crimes which, under the law of the requesting State, carry the death
penalty or any other penalty causing irreversible damage to the physical
integrity of the person or deprivation of liberty or detention order for
life or an indeterminate term. However, regarding the latter provision,
(deprivation of liberty or detention order for life) extradition is possible
whenever the requesting State provides assurances that such sentence will
not be enforced, based on the principle of flexibility introduced in article
33 of the Portuguese Constitution by the fourth constitutional revision.
This amendment aims at achieving an equilibrium between cooperation in
terms of serious crimes and the principles governing the internal legal
order, within which life imprisonment was legally abolished in 1886.

105. The above-mentioned
constitutional revision now permits the extradition of Portuguese citizens
from the national territory, on condition of reciprocity based on an international
agreement, in cases of terrorism and international organized crime, and
provided that the legal order of the requesting State enshrines safeguards
of a fair and just trial.

106. In Portugal,
the extradition procedure comprises two phases: the administrative phase
and the judicial phase. Whereas the preliminary rejection of the request
for extradition may take place during the administrative phase, in accordance
with Portuguese constitutional law, the decision to grant the request
for extradition falls exclusively within the competence of a judge. The
decision to extradite takes place during the judicial phase through a
decision which is taken at the end of the judicial procedure and during
which process the interested party may be heard and oppose extradition.
The judicial decision is final and executory and is sufficient to enable
the presentation of the person to the requesting State.

107. A refusal
to extradite does not encumber effective cooperation, given that Portuguese
law recognizes the principle of aut dedere aut judicare in the
legally foreseen cases. In this matter we refer the reader to what has
been previously stated in paragraph 10 of the present report.

Deportation

108. The grounds
for deportation are set out in Decree-Law No. 59/93, of 3 March, concerning
the entry, departure and residence of aliens within the national territory.
On this issue, we refer the reader to paragraphs 130 and 131 of the second
periodic report (CAT/C/25/Add.10).

109. Deportation
may result from a sentencing decision handed down in accordance with criminal
legislation (art. 97 of the Criminal Code).

110. Article
34 of Decree-Law No. 15/93 of 22 January, concerning the anti-drugs campaign,
provides for deportation for a period not exceeding 10 years, of an alien
convicted of a crime covered by this Decree-Law.

111. In accordance
with Law No. 15/98 of 26 March, which sets up the new legal regime governing
the status of political refugees and the right of asylum, an alien may
not be deported to a country where he may be subject to persecution on
the grounds warranting his being granted asylum, particularly to a country
where torture is practised.

112. Deportation
may also be ordered by a judicial authority or by the competent administrative
authority, the Aliens and Frontiers Service.

113. Deportation
shall be decided on by a judicial authority in the cases where it is an
accessory penalty or when the alien who is the subject of the decision
has entered or remains within the national territory lawfully and has
requested a residence permit or submitted an application for asylum which
has not been refused.

114. An alien
entering the national territory unlawfully may be detained by any police
authority, referred to the Aliens and Frontiers Service and, within a
maximum period of 48 hours, brought before the judicial authority with
competence to legitimize his detention and decide on the application of
enforcement measures. These may be, in addition to the measures listed
in the Code of Criminal Procedure, (for example, declaration of identity
and residence, mandatory bail, obligation of the alien to present himself
periodically before a judicial authority or criminal police body on certain
days at specific times, suspension from the performance of duties, the
practice of a profession and the enjoyment of rights, prohibition of residence,
restricted residence and pre-trial detention), periodic reporting to the
Aliens and Frontiers Service and accommodation in temporary centres, as
provided for in Decree-Law No. 34/94 of 14 September 1994.

115. The Aliens
and Frontiers Service is the authority with competence to initiate deportation
proceedings. During the proceedings, the alien must be present at the
hearing. The decision to deport falls within the competence of the Aliens
and Frontiers Service and may be subject to appeal to the Minister of
the Interior and, in terms of his decision, to the Administrative Courts.

Asylum

116. As mentioned
in paragraph 111 above, Law No. 15/98 of 26 March, sets up the new legal
regime governing the status of refugees and the right of asylum. This
law introduced certain new features, such as the possibility for family
members of the applicant for asylum to benefit, at the request of the
interested party, from a special residence permit, to be granted by the
Minister of the Interior. This measure aims at ensuring the reunification
of the family and thus provides exemption in these cases, from the requisites
of the general regime for the residence of aliens in the national territory.
A further legal innovation consists in enabling the Portuguese State to
award diplomatic protection for a period not exceeding two years to displaced
persons victims of serious armed conflicts which have given rise to large-scale
flows of refugees.

Article
4

117. As referred
to in paragraphs 142 to 154 of the second periodic report, (CAT/C/25/Add.10)
the new Criminal Code has undergone several changes in the articles relative
to torture. The draft revision of the Criminal Code mentioned previously,
contains an amendment in respect of article 150, whereby that article,
concerning operations and medical and surgical treatment, will read as
follows:

"1. Operations
and medical treatment which, based on medical knowledge and experience
are deemed appropriate and are performed according to the legis artis
by a physician or by another legally authorized person, with the intention
of preventing, diagnosing, healing or undermining illness, suffering,
physical injury or fatigue or mental disturbance, are not considered offences
against the physical integrity of the person.

2. The above-mentioned
persons which based on the objectives espoused therein perform operations
or medical treatments which violate the rules of the legis artis and thus
endanger the life, physical well-being or health of the person are punishable
by up to 2 years' imprisonment or by a fine of up to 20 days, if they
are not liable to a more serious sentence by virtue of another legal disposition."
/ This paragraph is underlined because it has been included in the draft
revision of the Criminal Code./

118. For further
information on this issue we refer the reader to paragraphs 140 to 154
of the second periodic report (CAT/C/25/Add.10).

Article
5

119. Article
5 of the Convention deals with the territorial application of criminal
law. In Portugal, this is the subject of articles 4, 5 and 6 of the Criminal
Code, as was described in the first and second reports (CAT/C/9/Add.15
and CAT/C/25/Add.10).

120. Without
prejudice to what was previously stated on this subject in paragraph 70
of the present report, article 5 is altered by the draft revision of the
Criminal Code. In accordance with this proposal, Portuguese criminal law
is also applicable to certain types of crimes committed by aliens who
are found in Portugal and whose extradition has been requested, when these
crimes are extraditable but the extradition may not be granted, for example
the crimes of kidnapping and traffic of persons.

Article
6

121. As previously
stated in prior reports presented by Portugal, the rules for the detention
of persons suspected of committing crimes detailed in the Convention vary
depending on whether the person is remanded in custody for the purpose
of extradition or remanded in custody for the purpose of criminal prosecution.

Remand in
custody for the purpose of extradition

122. Remand in
custody for the purpose of extradition is governed by the provisions of
a convention or international treaty in force in Portugal and in the absence
thereof is based on the principle of reciprocity, under articles 37 and
38 of Decree-Law No. 43/91, of 22 January 1991.

123. We refer
the reader to paragraphs 159 to 163 of the second periodic report (CAT/C/25/Add.10).

Remand in
custody for the purpose of criminal prosecution

124. Remand in
custody for the purpose of criminal prosecution is governed by article
28 of the Constitution and by the Code of Criminal Procedure.

125. The Portuguese
Criminal Code establishes a clear distinction between remand in custody
and pre-trial detention.

126. Pre-trial
detention is a last resort measure of constraint used when there is fear
that the person may abscond, destroy or tamper with evidence or disturb
public order and peace, and may only be applied when there are strong
indications that a crime punishable by a sentence exceeding a maximum
of three years' imprisonment has been wilfully committed, or if the detainee
has remained in the national territory on an irregular basis or if deportation
or extradition proceedings have been instituted against him.

127. Remand in
custody is aimed at ensuring that the detainee appears immediately before
the judge so that a procedural act can be drawn up or summary proceedings
initiated. In such case, the appearance before a judge may be designed
to impose an enforcement measure such as pre-trial detention.

128. Anyone against
whom an accusation is presented or against whom criminal proceedings are
filed is considered an accused. An accused person is conferred certain
rights and duties throughout the entire process, among them: the right
to be present at proceedings which directly concern him; to be heard by
the court or the examining magistrate whenever they must render a decision
which affects him personally; not to be forced to reply to questions from
participants in the trial in respect of the acts ascribed to him or in
respect of the content of statements already made; to select his own counsel
or request the court to appoint one, to be assisted by his counsel in
all proceedings in which he participates and, when in detention, to be
allowed to communicate with his counsel, including in private; to take
part in the inquiry and in the pre-trial investigation, submit evidence
and avail himself of such procedures as he may deem necessary; to be informed
of his rights by the judicial authority or by the criminal police body
before which he is required to appear; and to appeal, in accordance with
the law, against unfavourable decisions (art. 61 of the Code of Criminal
Procedure).

129. The law
foresees certain cases in which the presence of counsel is mandatory.
The presence of counsel is always mandatory, in accordance with article
64 of the Code of Criminal Procedure, at the initial judicial questioning
of the detainee, at the pre-trial examination and at the hearing except
in cases where imprisonment or detainment are not applicable, in any procedural
act where the accused is deaf, dumb, illiterate, ignorant of the Portuguese
language, under the age of 21, or there are any questions regarding unimputability
or reduced liability in terms of remedy or extraordinary remedy and in
cases of statements for the record.

Remand in
custody of persons caught in flagrante delicto

130. Provision
for the remand in custody of persons caught in flagrante delicto
is set out in articles 254, 255 and 257 of the Code of Criminal Procedure
and is specified in the second periodic report (CAT/C/25/Add.10, paras.
165-170).

131. However,
the draft proposal for revision of the Code of Criminal Procedure contains
an alteration to article 254 which will read as follows:

"Remand in custody
as referred to in the following articles takes place:

(a) So that
within a maximum period of 48 hours following the arrest, the detainee
must be brought for summary proceedings or before a competent examining
magistrate for initial judicial questioning or application or execution
of enforcement measures; or

(b) To ensure
that the detainee is immediately brought before the judicial authority
so that a procedural act can be drawn up. In cases where this may prove
impossible, the detainee must appear before a judge within the shortest
period of time not exceeding 24 hours following the arrest.

2. The accused
who is not caught in flagrante delicto must always be brought before
a judge in accordance with the provisions of article 141 for the application
or execution of pre-trial detention."

Pre-trial
detention

132. Pre-trial
detention is provided for under article 28 of the Constitution of the
Portuguese Republic and article 215 of the Code of Criminal Procedure
and is outlined in paragraphs 171 to 176 of the second periodic report
(CAT/C/25/Add.10).

133. The draft
revision of the Code of Criminal Procedure proposes a change / The new
revision of article 215 of the Code of Criminal Procedure will be the
following:

Article 215

(Maximum time
limits for pre-trial detention)

1. Pre-trial
detention shall end after the following time periods have elapsed from
its commencement:

(a) 6 months,
if no charge has been filed against the accused;

(b) 10 months,
if, after the pre-trial examination has taken place, no decision has been
handed down concerning committal for trial;

(c) 18 months
when no first instance sentence has been handed down;

(d) 2 years,
when no sentence with the force of res judicata has been handed
down.

2. The timeframes
referred to in the previous paragraphs are increased respectively, to
8 months, 1 year, 2 years and 30 months, in cases of terrorism, violent
or highly organized crime, or when effected for a crime punishable with
a prison term of over 8 years, or for a crime:

(b) Of car theft
or forgery of documents therein related or elements of identification
of vehicles;

(c) Counterfeit
of money, credit instruments, notes, stamps and like instruments, or of
economic participation in a transaction;

(d) Fraud, fraudulent
insolvency, harmful administration of the public or cooperative sector,
forgery, embezzlement or corrupt economic participation in a transaction;

(e) Laundering
of monies, goods or products of crime;

(f) Fraud in
the attainment or misdirection of subsidy, grant or credit;

(g) Encompassed
by the convention on the safety of air and maritime travel.

3. The time limits
referred to in paragraph 1 are increased to 12, 16 months, 3 and 4 years
respectively, when the procedure is for one of the crimes referred to
in the previous paragraph and reveals itself of particular complexity,
owing to the number of defendants or victims or the highly organized nature
of the crime.

4. The time limits
referred to in paragraph 1 (c) and (d), as well as the corresponding items
referred to in paragraphs 2 and 3, are increased by six months if there
is an appeal to the Constitutional Court or if the criminal process has
been suspended for trial in another court of preliminary ruling./ to paragraphs
2 and 3 of article 215 regarding the cases in which the legal time limits
set out for pre-trial detention can be extended. This change however merely
increases the range of crimes which may be encompassed by an extension
of the legal time limits governing pre-trial detention, without however
increasing the maximum limit. The maximum time limit remains four years,
applicable only to certain crimes and in situations where they prove of
particular complexity. The legal motives for the extension of the standard
time limits are extremely restricted.

134. In general,
pre-trial detention ends whenever the following periods have elapsed from
its beginning: six months without charges having been filed against the
accused; 10 months without pre-trial examination, a decision having been
handed down regarding committal for trial; 18 months without a first instance
sentence having been handed down; two years without a sentence of res
judicata being handed down.

Remand in
custody for purposes of identification

135. Law No.
5/95, of 21 February, establishes the obligation of possession of a document
of identification, in the absence of which or refusal to present such
a document, an identification procedure may take place consisting of the
escort of the person to be identified to the nearest police post, where
he will remain for the period of time strictly necessary for purposes
of identification, which may not exceed two hours.

Other enforcement
measures

136. According
to the principle of legality set out in article 191 of the Code of Criminal
Procedure, "the freedom of individuals may only be restricted, whether
totally or partially, on the basis of procedural requirements, by enforcement
measures or bail provided for by the law".

137. Article
193, paragraph 1, stipulates that "The enforcement measures or the bail
must be in keeping with the requirements of prevention in the case in
question and proportional to the seriousness of the crime and the penalties
foreseen to be applicable". The execution of enforcement measures shall
not affect the exercise of fundamental rights and shall require that the
person be duly charged.

138. We refer
the reader to the second periodic report (CAT/C/25/Add.10), regarding
the statute of the person charged (para. 180) and the conditions for the
application or revocation of enforcement measures (paras. 181-184).

Article
7

139. Under article
31 of Decree-Law No. 43/91, of 22 January, if extradition is refused in
the cases provided for therein, the requesting State is called upon to
furnish all the elements necessary for the institution or continuation
of criminal proceedings against the person being prosecuted for the offence
which constitutes the basis for the request.

140. Consequently,
if Portugal does not allow the extradition, it is bound to bring criminal
proceedings against the person in question, in accordance with the principle
of aut dedere aut judicare.

141. In such
a case, the rights and procedural safeguards provided for under the Constitution
of the Portuguese Republic and the law are fully respected. Concerning
this subject, we recall what was stated in paragraph 120 regarding the
changes to article 5 of the Criminal Code.

Article
8

142. Under this
article of the Convention, the offences referred to in article 4 must
be included in any extradition treaty concluded between States.

143. As previously
stated, in Portugal, extradition is governed by article 33 of the Constitution
and by Decree-Law No. 43/91, of 22 January (law governing international
cooperation in criminal matters), which is applied in the absence of an
international treaty on the subject.

144. Relative
to Decree-Law No. 43/91, of 22 January, we refer the reader to paragraphs
197 to 199 of the second periodic report. It should be borne in mind that
the Decree-Law is at present under legislative review, following the fourth
constitutional revision and the need to adapt internal legislation to
the most recently adopted conventional instruments, namely those within
the framework of the Council of Europe.

146. As mentioned
above in paragraphs 23 and 24, Portugal is a party to many international
conventions on the subject, including the 1959 European Convention on
Mutual Assistance in Criminal Matters and the Additional Protocol thereto
and has concluded bilateral treaties on this matter with several countries,
namely Australia, Brazil and Portuguese-speaking African countries.

Article
10

147. Training,
information and the development of awareness regarding torture and other
cruel, inhuman or degrading treatment or punishment is one of the most
important means of ensuring the effective prevention of such practices.

148. Regarding
the means and forms of organization of the information, we refer the reader
to paragraphs 205 to 207 of the second periodic report (CAT/C/25/Add.10).

Police officials

149. Since 1989,
the curriculum of the training courses for the police forces has included
human rights issues, special attention being given to the need to treat
detainees (as well as suspects) humanely.

150. The School
of Advanced Police Studies, a university-level academy provides advanced
training courses for senior officers of the Public Security Police (PSP)
in areas such as command and management. Included in the curricula of
these courses are subjects such as legal sciences, social sciences and
professional ethics, in which human rights and the safeguard of fundamental
rights and freedoms play a primary role.

151. PSP has
another training institution, the Police Academy of Torres Novas, which
provides basic and additional training to rank and file police officers
and which organizes courses and seminars in ethics, intended to increase
awareness of humanist principles and values.

152. The Republican
National Guard (GNR) trains its officers at the Military Academy, which
has created a special university-level course in which socio-political
sciences and the law play a leading role.

153. GNR has
another training institution, focusing on the moral, cultural, physical,
military and technical-professional training of rank and file officers,
where various training courses on personal improvement are given.

154. The training
of the Judicial Police (PJ) falls under the responsibility of the National
Institute of Police and Criminal Science; human rights play a significant
role and are present at all levels of training.

155. The technical-practical
training of private security personnel also includes the subject of human
rights.

156. The training
of prison warders includes issues such as personal and social development,
justice and discipline, prison theory and practice, institutional security,
drugs and the prison system, and interpersonal relations. The course content
has been enriched with the introduction of the study of the protection
of human rights, as well as the study of various international conventions
and of the functioning of the Committee against Torture, the European
Committee for the Prevention of Torture and the European Commission on
Human Rights.

157. In 1996,
the Office of Documentation and Comparative Law of the Office of the Prosecutor-General,
in conjunction with the Directorate-General of Prison Services and the
Institute for Social Integration and with the support of the Ministry
of Justice, translated into Portuguese the manual Making Standards
Work published by the non-governmental organisation Penal Reform International,
whose aim is to contribute to the improvement of prison conditions and
to promote fairer and more humane treatment of delinquents. This activity
was undertaken within the framework of promoting the programme of crime
prevention and criminal justice of the United Nations.

158. Recently,
the media has publicized an initiative of the Ministry of the Interior,
of a film entitled, "Fundamental rights, standards of action", designed
to serve as a complementary source of training for the security forces
and which attempts to demonstrate the procedures such forces should adopt
in terms of ensuring respect for the fundamental rights of the citizen,
in both everyday and hazardous situations.

Article
11

Prison system

159. The government
programme in the area of justice established as a priority the creation
of an urgent programme of action for the prison system, with particular
emphasis on the system of execution of sentences and enforcement measures.

160. Consequently,
the Programme of Action for the Prison System, which comprises a series
of measures aimed at improving the conditions of detention, was approved
by Resolution No. 62/96, of 29 April, of the Council of Ministers.

161. The Programme
of Action provides for the strengthening of conditions relating to the
application of the system of sanctions which do not involve deprivation
of liberty, the revision of the Criminal Procedure Code and the improvement
of the prison system.

162. In terms
of strengthening the conditions relating to the application of a system
of sanctions which do not involve the deprivation of liberty, Decree-Law
No. 375/97, of 24 December 1997, establishes procedures aimed at enhancing
and promoting the organization of practical conditions for the application
and execution of community work. This penal institute endeavours to censure
criminal activity though positive work actions on behalf of the community
and symbolic community reparation, promoting the social utility of work
rendered and the social integration of the delinquent person. The person
involved in rendering such services is as such and in accordance with
the above-mentioned statute, a person who renders unremunerated services
to the State or other public or private entities, as a result of a legal
conviction determining such services.

163. A working
group has been set up within the Ministry of Justice to undertake a study
on the introduction in Portugal of electronic control measures.

164. One of the
main objectives in revising the Code of Criminal Procedure is to advance
solutions designed to expedite criminal procedure and thus eliminate successive
postponements of certain judicial acts, as well as to introduce more efficient
procedures for the handling of minor crimes and the revision of the system
of appeal.

165. The Programme
of Action also comprises legislative and administrative measures to address
the urgent need for intervention in the prison system.

166. The following
legislative measures have been adopted to date:

Law No. 36/96,
of 29 August 1996, which allows for the release of convicted detainees
suffering from serious and irreversible illness in a terminal phase;

Decree-Law No.
10/97, of 14 January 1997, which reviews the law governing the organization
of the Directorate-General of Prison Services and establishes adequate
structures to face the problems posed by the present prison population;

Decree-Law No.
46/96, of 14 May 1996, which established an additional regime for the
realization of works, for the acquisition of goods and services and for
personnel recruitment for the Directorate-General of Prison Services;

The development
of various prison establishments, namely the prisons of Castelo Branco
and Monção, the special prison of Viseu, for the detention of young adult
males, and the prison of Carregueira, (established by Decree Law No. 39/96
of 6 May 1996, Administrative Rule No. 34/97 of 9 January 1997, Decree
Law No. 190/97 of 29 July 1997, and Decree-Law No. 273/97, of 8 October,
respectively).

The correction
of remuneration disparities of prison warders, through Decree-Law No.
100/96 of 23 July.

167. In terms
of administrative measures, among various protocols with several public
administration departments special reference should be made to the protocol
with the Ministry of Health regarding the treatment of drug addicted detainees,
aimed at controlled abstinence, through drug testing and the free distribution
of methadone.

168. Following
the broadcasting of information by the media, a global project is under
way for the establishment of health units, hospital wards, locations for
inmates with infectious and contagious illnesses, and "drug free zones".
The first Drug Free Village has already been approved and is expected
to be established within the Sintra prison during the first semester of
1999.

169. So as to
address the problem of excess prison population, two new prisons are to
be constructed, one in the south and the other in the central part of
the country, as well as a new female prison establishment.

170. The Governmental
Programme Options for 1998 established two priorities in the area of justice:

The continuation
of the efforts undertaken to improve the conditions surrounding the execution
of sentences involving the deprivation of liberty, through an increase
in the holding capacity of the prison system, the establishment of conditions
which favour the social rehabilitation of inmates and the improvement
of the material conditions of certain establishments (by means of Order
No. 20/MJ/96, of 10 February 1996, establishing the Commission for the
Reform of the System of Execution of Sentences and Enforcement Measures
and Order No. 174/97, of 30 June 1997, which establishes a working group
to develop and propose general guidelines for a work model for inmate
occupational purposes).

The establishment
of conditions which will allow the application of non-confinement measures,
such as community work.

171. Following
the recommendations of the Committee for the Prevention of Torture which
has already undertaken two visits to Portugal and the reports of the Inspectorate-General
of the Ministry of the Interior, several detention places have been closed
down owing to internal conditions, as referred to in paragraph 52 above.

Ombudsman

172. The office
of the Provedor de Justiça (mediator or Ombudsman) is an independent
institution whose primary function is the defence and promotion of the
rights, freedoms, safeguards and legitimate interests of the citizens
(see paragraphs 101 to 105 of the core document (HRI/CORE/1/Add.20), and
paragraphs 228 to 236 of the second periodic report (CAT/C/25/Add.10)).

173. We merely
add that the Provedor de Justiça is elected by a two-thirds majority
of the Members of Parliament to serve a four-year renewable mandate and
may not be removed from office before the end of his mandate, except at
his own request.

174. The Provedor
is completely independent of the political establishment and acts on his
own initiative or in response to complaints submitted to him by private
individuals.

175. The Provedor
has no decision-making powers, but may address recommendations deemed
necessary for the prevention or remedy of injustice to any entity within
the Public Administration.

176. The Provedoria
de Justiça carries out inspection tours to prison establishments and
drafts reports containing relevant recommendations to the competent authorities.

Right of petition

177. Under article
52 of the Constitution, all citizens may, individually or collectively,
submit petitions, representations, claims or complaints for the purpose
of defending their rights, the Constitution, the law or the public interest,
to the organs of supreme authority of the State or to any other authority.

178. Law No.
43/90, of 10 August 1990, as amended by Law No. 6/93, of 1 March 1993,
regulates and safeguards the exercise of the right of petition through
the submission to the organs of supreme authority of the State, or any
other authority, of petitions, representations, claims or complaints.

179. The petition
may also be submitted to the Commission on Rights, Freedoms and Safeguards
of the Assembly of the Republic, which is empowered to conduct the appropriate
inquiries and refer them to the competent authorities.

Provisions
on the custody and treatment of arrested, detained or imprisoned persons

180. With regard
to the provisions on the custody and treatment of arrested, detained or
imprisoned persons, set out in the Prison Act (Decree-Law No. 265/79,
of 1 August 1979, as amended by Decree Laws No. 49/80, of 22 March 1980,
and No. 414/85, of 18 October 1985, we refer the reader to paragraphs
242 to 246 of the second periodic report (CAT/C/25/Add.10).

Pre-trial
detention

181. Pre-trial
detention is governed by the special rules of articles 209 and following
of the Prison Act (Decree-Law No. 265/79, of 1 August 1979, as amended
by Decree Laws No. 49/80, of 22 March 1980, and No. 414/85, of 18 October
1985).

182. Regarding
the contents of this rule we refer the reader to paragraphs 247 to 253
of the Second Periodic Report (CAT/C/25/Add.10).

Special security
measures

183. Article
111 of the Prison Act prescribes that special security measures may only
be applied to detainees if their conduct or psychological state suggests
that they may try to commit acts of violence against themselves, other
individuals or property.

184. The authorization,
responsibility for application and maximum period of duration of such
measures, as well as the rights of detainees subject to special security
measures are specified in paragraphs 254 to 261 of the second periodic
report (CAT/C/25/Add.10).

185. The governor
of the institution is responsible for authorizing the application of the
special security cell confinement measure. The maximum period during which
a detainee may be held in uninterrupted isolation in a special security
cell is one month. However, whenever the governor of the institution determines
the application of this measure for a period exceeding 15 consecutive
days, the decision must be submitted to the approval of the Directorate-General
of Prison Services.

186. All detainees
placed in a special security cell are placed under medical supervision.
The institution's physician must report to the governor on the detainee's
physical and mental state of health, and, if necessary, on the need to
terminate the punishment. Experience has demonstrated that the prison
services usually follow the recommendations of the attending physician.

187. In accordance
with a memorandum of the Directorate-General of Prison Services, detainees
are entitled to remain outdoors for at least one hour per day. This memorandum
was elaborated following a recommendation of the European Committee for
the Prevention of Torture of the Council of Europe.

188. The detainees
placed under the special security regime have the same safeguards as other
detainees against the use of abusive measures. These measures are established
by law and comprise the right to submit a complaint to several entities,
such as the director of the institution, the inspectors, the Directorate-General,
the sentencing judge, the Ombudsman, the Minister of Justice and the President
of the Assembly of the Republic.

189. The Prison
Act also expressly provides for the right of appeal to the Court in Strasbourg.

190. The exchange
of communications between the detainees and the entities referred to above
is strictly confidential.

The use of
force

191. The provisions
regarding the use of force are set out in articles 196 and following,
of the Code of Criminal Procedure and are specified and described in paragraphs
262 to 265 of the second periodic report (CAT/C/25/Add.10).

192. Article
193 of the Code of Criminal Procedure establishes proportionality as the
rule in all matters pertaining to the use of force, which must be limited
to the time period which is strictly necessary. Articles 212 and following
of the Code of Criminal Procedure establish that these measures may be
revoked, altered or terminated in the course of the periodic evaluation
process to which they are subject. In addition, it is important to note
that in terms of safeguards, the possibility is provided of appealing
any decision to apply or maintain these measures. This appeal shall be
judged within a maximum period of 30 days after receipt of the appellate
records, pursuant to article 219 of the Code of Criminal Procedure.

193. Recourse
to physical force always requires a written inquiry into the circumstances
determining its application.

194. In the case
of conflict between the rules and guidelines stemming from the prison
and police hierarchies and the Physicians' Code of Ethics, the latter
shall prevail over the former, which may even, in certain cases, be totally
ignored. By way of example, if there is an order for the forced feeding
of a detainee on a hunger strike, the physician concerned may refuse to
abide by such an order, without incurring any criminal or disciplinary
legal sanctions.

Aliens

195. Decree-Law
No. 59/93, of 3 March 1993, on the entry, residence, exit and expulsion
of aliens from national territory, calls for the establishment of temporary
settlement centres to house aliens.

196. The procedure
for receiving aliens or stateless persons in the temporary settlement
centres is set forth in Law No. 34/94, of 14 September 1994, which calls
for the additional application to aliens, settled in them for reasons
of security, of the special rules for pre-trial detention provided for
in the Prison Act.

Article
12

197. Under article
12 of the Convention, each State party shall ensure that its competent
authorities proceed to a prompt and impartial investigation, wherever
there is reasonable ground to believe that an act of torture has been
committed in any territory under its jurisdiction.

The right
to lodge a complaint

198. Any victim
of ill-treatment, abuse of authority or of the use of excessive force
is entitled to lodge a complaint, which must necessarily be accepted.

199. The complaint
may be lodged with either the administrative or judicial authorities,
or simultaneously with both. The acts in question are dealt with through
internal police disciplinary measures, as well as administrative inquiries
ordered by the internal hierarchy of the bodies concerned, or through
criminal proceedings before the competent courts.

200. The decision
to institute disciplinary proceedings lies with the hierarchy of the security
forces and relevant the Ministry. The possibility of appealing the decisions
of these authorities to the competent administrative courts is, however,
always available.

201. For details
of the disciplinary proceedings, we refer the reader to paragraphs 272
to 285 of the Second Periodic Report (CAT/C/25/Add.10).

202. The following
table provides statistics, obtained from the Office of the Attorney General,
on alleged crimes perpetrated by police officers. (The data is current
as at 31 March 1998.)

Types of offences (criminal acts) while on duty for whichcomplaints were lodged against police officers

Type of offence

1991

1992

1993

1994

1995

1996

1997

Total

Voluntary physical offences

111

180

255

206

175

159

91

1 177

Abuse of powers

41

46

53

70

59

65

17

351

Threats

16

24

31

26

20

23

5

145

Illegal arrest

15

19

31

19

29

10

7

130

Injury

24

40

49

35

36

17

11

212

Murder (consummated/attempted)

1

0

3

3

1

2

0

10

Involuntary manslaughter

1

3

2

8

3

3

1

21

Forced deposition

8

10

16

15

10

1

1

61

Use of force

5

6

14

7

12

9

2

55

Wrongful initiation of proceedings/failure to initiate proceedings

6

10

9

8

12

2

2

49

Corruption

3

6

12

7

15

5

6

54

Other crimes

54

82

107

77

77

70

60

527

Total

285

426

582

481

449

366

203

2 792

Note:
The numbers registered pertain to criminal acts that have been denounced
and not to crimes actually committed, the occurrrence of which can only
be confirmed or not, after investigation and trial.

Proceedings
- while on duty

Proceedings

1991

1992

1993

1994

1995

1996

1997

Total

1. Proceedings instituted

192

303

424

336

330

280

179

2 044

2. Accusations

58

82

90

70

47

43

14

404

3. Amnesties

2

5

15

6

0

0

1

29

4. Retracted complaints

5

8

19

15

15

16

5

93

5. Filed for other reasons

28

53

66

45

57

28

18

295

6. Total filed (3+4+5)

35

76

100

66

72

44

24

417

7. Insufficient evidence

76

101

162

125

123

84

31

702

8. Referred to military justice

18

22

28

16

12

8

0

104

9. Total concluded (2+6+7+8)

187

281

380

277

254

179

69

1 162

10. Pending investigation

5

22

44

59

76

101

110

417

11. With conviction

15

15

22

9

6

1

1

69

12. With acquittal

17

9

8

8

3

3

0

48

13. Trial pending

18

45

53

46

33

37

13

245

14. Concluded before trial

8

13

7

7

5

2

0

42

Officers charge
by police organs - while on duty

Officers charged (accusation)

1991

1992

1993

1994

1995

1996

1997

Total

Public Security Police

248

338

473

400

383

370

209

2 421

National Republican Guard

73

102

124

126

113

111

44

693

Judicial Police

23

39

52

39

46

25

15

239

Customs Police

1

13

22

4

1

0

1

42

Directorate General for Economic Inspections

1

1

0

0

0

0

0

2

Prison guards

5

0

7

11

14

11

8

56

Municipal Police

0

1

2

1

0

2

0

6

Forest Rangers

0

1

1

5

1

0

5

13

Total for the year

351

495

681

586

558

519

282

3 472

Article
13

203. Article
13 of the Convention stipulates that each State Party shall ensure that
any individual who alleges he has been subjected to torture has the right
to complain to the competent authorities, which are required to examine
the complaint promptly and impartially.

204. Article
21 of the Constitution stipulates that "Everyone has the right to refuse
to comply with an order that infringes his or her rights, freedoms or
guarantees and to resist by force any form of aggression when recourse
to a public authority is impossible."

Access to
the law and the courts

205. Decree-Law
No. 387-B/87 of 29 December 1987 defines the conditions for access to
the law and the courts, in order to ensure that everyone, regardless of
economic, social or cultural status, is allowed to assert or defend his
or her rights.

206. These goals
are achieved by means of actions and mechanisms designed to provide legal
information and protection. Legal protection takes the form of legal counselling
and legal aid.

207. The rules
governing legal aid are set out in Decree-Law No. 387-B/87, of 29 December
1987, Decree-Law No. 391/88, of 26 October 1988, as amended by Law No.
133/96 of 13 August 1996 and Law No. 46/96 of 3 September 1996.

208. Recently,
Law No. 46/96, of 3 September 1996 has extended legal aid to non-resident
aliens on condition of reciprocity.

209. Legal aid
includes total or partial exemption from court and lawyers fees and/or
free consultation in free legal counselling offices, established for this
purpose.

210. So as to
facilitate the functioning of the pro-bono legal counselling system, article
19 of Decree-Law No. 387-B/87, of 29 December 1987 stipulates that "proof
of the applicant's economic hardship can be accomplished by any suitable
means".

211. In keeping
with the avowed concern of the State to ensure every citizen equal access
to the law, the Bar Association imposes upon its professional members
the obligation of participating in this objective.

212. The Statute
of the Bar Association, provided for in Decree-Law No. 84/84, of 16 March
1984, as amended by Decree-Law No. 119/86, of 28 May 1986 and Law No.
33/94 of 6 September 1994, stipulates as one of the duties of the lawyer,
the provision of pro bono services, or free legal counselling, for which
he will later be paid by the State. Article 85, paragraph 1 states: "A
lawyer should not, without justifiable motives, refuse free legal counselling."

213. Pursuant
to article 11, paragraph 1 of Decree-Law No. 391/88, of 26 October 1988,
which governs legal aid, the fees paid to lawyers and solicitors legal
aid services, as well as justifiable expenses which they have incurred,
will be paid from the court's general expense account.

214. In order
to guarantee economically challenged citizens the same legal counselling,
on a free basis, as is available to more economically endowed citizens,
11 legal counselling offices were established by Decree-Law No. 387-B/87
of 29 December 1987.

The right
to lodge a complaint before public authorities and entities

215. Recourse
to the Ombudsman (Provedor da Justiça) is provided for and safeguarded
under the conditions mentioned in paragraphs 172 to 176 of the present
report.

216. The right
of detainees to lodge a complaint is governed by Decree-Law No. 265/79,
of 1 August 1979, referred to in paragraph 180 above.

Protection
of judges, witnesses and experts

217. The Portuguese
legal system makes no specific provision for the protection of witnesses,
experts, judges, prosecutors, judicial officials and jurors against intimidation
practices which may pose a threat to their life or physical integrity
or that of their closest relatives. However, studies are currently under
way with a view to the preparation of legislation in this area.

218. However,
the absence of specific legal provisions for the protection of such persons
does not imply that practical measures may not be adopted in this regard
at the administrative level, based on the particular circumstances of
each case and the protection of fundamental rights, freedoms and safeguards.

219. Decree-Law
No. 43/91, of 22 January 1991, which authorizes international co-operation
in criminal matters is described in greater detail in paragraphs 298 and
299 of the second periodic report (CAT/C/25/Add.10), and is, as previously
mentioned in the present report, currently being revised.

Article
14

220. Portuguese
law provides several means by which compensation may be obtained. The
general rule is contained in article 483, paragraph 1 of the Civil Code,
which stipulates that, "anyone who wilfully or negligently violates the
rights of another person or any legal norm for the protection of the rights
of others, must pay compensation for damage resulting from the violation".

The liability
of the authorities

221. Article
22 of the Constitution, which has not been amended, is described in paragraph
301 of the second periodic report (CAT/C/25/Add.10). This article reads
as follows:

"The State and
other public bodies shall be jointly and severally liable under the civil
law, with the members of their organs, their officials and other personnel,
for acts or omissions in the performance of their functions, or caused
by the performance of their functions, which result in contravention of
rights, freedoms or guarantees or in damage to another person."

Civil liability
deriving from a crime

222. Portuguese
criminal law and criminal procedure law provide for civil liability deriving
from a crime (art. 129 of the Criminal Code). The civil liability deriving
from a crime provided for in articles 71 and 377 of the Code of Criminal
Procedure and the system of indemnity derived therefrom are described
respectively in paragraphs 303 and 304 and paragraphs 305 to 311 of the
second periodic report (CAT/C/25/Add.10). As stated in paragraph 20 above,
the proposed bill on the revision of the Code of Criminal Procedure introduces
the possibility for the court to award damages with the effect of criminal
conviction, for losses suffered, when special considerations for the protection
of the victim so require.

Victims of
violent crime

223. In conformity
with article 130 of the Criminal Code, Decree-Law No. 423/91 of 30 October
1991, determines the legal regime for the protection of victims of violent
crime.

224. This statute
was amended by Law No. 10/96 of 23 March 1996, but only as applicable
to acts committed before the entry into force of Decree-Law No. 400/82,
of 23 September 1982 to establish the time limit governing application
for compensation in these cases.

225. The system
of compensation for victims of violent crimes is described in paragraphs
54 to 56 above and in paragraphs 313 to 327 of the second periodic report
(CAT/C/25/Add.10).

226. The statistics
of the Commission for Compensation of the Victims of Violent Crimes on
provisions and compensation awarded in 1996 / Source: Justice files, September
1997, Bureau of Studies and Planning of the Ministry of Justice/, are
the following:

Provisions
awarded

Cases in which
provisions were awarded : 2

Highest provision
awarded : Esc 500,000

Lowest provision
awarded : Esc 200,000

Compensation
awarded

Cases in which
compensation was awarded : 25

Number of petitioners
who benefited : 31

Highest award
: Esc 4,000,000

Lowest award
: Esc 150,000

Total awards
: Esc.62,471,000

Average award
: Esc 2,498,840

Compensation
of civil and military officials, jurors, mayors and women

227. Regarding
this matter, we refer the reader to paragraphs 329 to 333 of the second
periodic report (CAT/C/25/Add.10).

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15

228. Article
32, paragraph 8 of the Constitution stipulates: "Evidence is of no effect
if it is obtained by torture, force, infringement of the physical or moral
integrity of the individual, or wrongful interference with private life,
the home, correspondence or telecommunications."

229. Further
to the constitutional guarantees, article 126 of the Code of Criminal
Procedure stipulates that any evidence obtained through torture, coercion
or violation of the physical or moral integrity of an individual is null
and void and may in no case be used.

230. The above-mentioned
article, which has not been amended, is discussed in paragraphs 335 to
337 of the second periodic report, (CAT/C/25/Add.10).

231. Under article
140 of the Criminal Code an accused person, even when detained, must be
allowed freedom of movement, except if circumstances require otherwise.
This measure, which expresses the constitutional principles regarding
personal dignity and the proportionality of measures for the deprivation
or restriction of freedom, will further contribute to ensuring the protection
of individuals against acts of torture.

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16

232. As previously
mentioned not only torture, but cruel, degrading or inhuman treatment
or punishment are criminalized, pursuant to the Convention.

233. The cases
referred to in the present report often constitute violations of physical
integrity, which are punishable under articles 243 and 244 of the new
Criminal Code following the 1995 revision.

234. As described
in the present Report and in those submitted previously, the Portuguese
legal system effectively prohibits any act that might constitute cruel,
inhuman or degrading treatment.